Avoiding a conflict of interest
6 August 2021 by Joel Tyson
What is a conflict of interest?
At FJG we are always happy to help prospective clients whenever we can. However, there are some circumstances when solicitors have to decline to take instructions because a “conflict of interest” may arise. When trying to find a suitable solicitor, an individual may find that a firm would like to act on their behalf but are, unfortunately, unable to do so, because a potential conflict may arise. This can be upsetting for prospective clients, particularly when they have been recommended to a specific solicitor or firm.
Quite often solicitors will not be able to explain why the conflict arises and why they are unable to represent you. This can be frustrating and confusing for many people. The purpose of this blog is to briefly explain what could cause a conflict of interest and why a law firm would be unable to represent you, or even explain why a conflict exists.
What is a conflict of interest?
Solicitors have a professional obligation to adhere to a strict code of conduct which is regulated by the Solicitors Regulation Authority (SRA). Many of these rules are obvious, such as keeping client’s information confidential or always acting in their best interest.
A conflict of interest occurs when a solicitor’s separate duties to two or more clients in relation to the same or a related matter conflicts. Solicitors must avoid a conflict of interest, or even the risk of a conflict, with only very limited exceptions. A conflict of interest can occur in a variety of situations in family disputes, as well as other areas of law. The scenarios below set out a few circumstances where a conflict may arise in the context of family law.
Person ‘A’ and Person ‘B’ are in a relationship and have a child together, ‘C’. The relationship breaks down and ‘A’ and ‘B’ separate. Following separation, ‘A’ seeks legal advice in relation to child arrangements for contact and residence of ‘C’. ‘B’ then seeks legal advice in relation to the same matter at the same firm.
In this circumstance the firm would have separate obligations to ‘A’ and would have to act in their best interest.
This is a simple and obvious example of a conflict of interest and generally firms cannot act for both parties to a dispute such as a husband and wife who are divorcing or parents who cannot agree child arrangements.
Person ‘X’ instructs a firm in relation to a personal injury claim. As a result of this claim ‘X’ is awarded £100,000.00 in compensation. Several years later ‘Y’, the partner of ‘X’, seeks advice from the same firm in relation to divorce and matrimonial finances having separated from ‘X’.
In this circumstance, the firm will have a duty to ‘X’ to keep all of the details relating to their personal injury claim confidential. If however a firm were to act for ‘Y’ in relation to matrimonial finances, it would be in their best interest for the firm to disclose the £100,000.00 settlement that ‘X’ received historically. Although the two matters are not seemingly related, there is nonetheless a conflict and a firm should not act for ‘Y’.
At FJG we carry out initial checks using our IT systems to identify where a conflict of interest may arise at an early stage. However, there are circumstances, thankfully very rare, where information which was not available at the initial enquiry stage comes to light and a solicitor may then have to cease to act as soon as that conflict is identified.
Although a firm may sometime be unable to act, at FJG we are always happy to help whenever we can for you. If you would like advice in relation to a family issues, please contact our Family Team at 01206 700113 or email [email protected]